It is a disgraceful decision, the final howl of which is this: How dare the executive branch, the government, have gone and picked a judge and amended a law?

Whichever plot you favour to explain the now-scuttled appointment of Marc Nadon to the Supreme Court of Canada — there’s a convoluted connection to the former boy terrorist/boy victim Omar Khadr which has been offered to explain both appointment and scuttling, but the really fabulous one is that the high court has stepped in yet again to check that well-known force of darkness, Prime Minister Stephen Harper — it’s crystal clear that the Supreme Court of Canada is unhappy with this government which insists upon doing the business of governing.

Marc Nadon, a Quebec-born and -educated lawyer with almost 20 years of legal experience in Quebec and 20 years experience as a judge of the Federal Court of Canada and the Federal Court of Appeal, was declared ineligible for appointment to one of three seats reserved for Quebec on the Supreme Court of Canada. The majority of Justices went out of their way to portray the judgment as constitutionally required in order to protect Quebec’s interests.

How did this come about?

Let’s start with the common ground. Everyone agrees that the Supreme Court Act provides that current and former superior court judges are eligible for appointment to the Supreme Court, along with current and former members of the bar of at least 10 years standing. There is no dispute that Nadon is eligible to be appointed to the Court on these criteria. In fact, there is a long history of appointing Federal Court Judges to the Supreme Court.

The wrinkle is that another provision of the Act provides that at least three judges of the Supreme Court shall be appointed from among the judges of the Quebec superior courts or the Quebec bar.

According to the majority of the Court, this provision operates to disqualify Nadon, for he is neither a Quebec superior court judge nor is he currently a member of the Quebec bar.

In short, according to the majority, the moment he accepted appointment to the Federal Court in Ottawa, Marc Nadon ceased to be a Quebec lawyer for purposes of Supreme Court eligibility.

Was this result required by the language of the law or principles of statutory interpretation? The short answer is no, as Justice Michael Moldaver explained in his dissenting opinion.

Justice Moldaver’s opinion has been all but ignored in the commentary praising the majority’s decision. But his opinion is forceful and must be reckoned with.

Justice Moldaver describes the majority as engaging in “cherry-picking” of the appointment criteria, applying only aspects of the law that are “convenient” and “jettisoning those that are not.” The Court’s approach to statutory interpretation, as he describes it, is “heretofore unknown.”

The result is absurd, according to Justice Moldaver, because Judge Nadon would become eligible for appointment to the Supreme Court if he were to rejoin the Quebec bar for as little as a single day.

Think about that for a moment. This, we are told, was a major constitutional moment in the Supreme Court of Canada, but all that was at stake was a single day. The majority of the Court explicitly refused to address this point, no doubt out of embarrassment.

The majority attempts to buttress its decision by inventing an “underlying purpose” to the appointment requirements they are enforcing. The law, they say, is designed to ensure not just that the Supreme Court has expertise in Quebec law, but also that Quebec’s legal traditions and “social values” are represented on the Court.

Judges are supposed to put their values aside when they adjudicate. Aren’t Quebec judges expected to do the same?

If this is the purpose of the law, it operates imperfectly by excluding Nadon: As a lawyer born and educated in Quebec, he must surely have the relevant “social values” — unless he is somehow no longer Quebecois by virtue of his federal work.

But this is all makeweight stuff in any event. As Justice Moldaver writes, importing social values into the law is “unsupported by the text and history of the Act.”

For its part, the majority offers no explanation of the social-values concept it says is so important. But it is implausible to suppose that there is some uniform set of social values that Quebecers share, and odd to suppose they are properly relevant to the task of judging in any event.

After all, judges are supposed to put their values aside when they adjudicate. Aren’t Quebec judges expected to do the same?

At the end of the day, the Court’s judgment denies Marc Nadon a seat on the Court and embarrasses the government. But the consequences go much further.

In purporting to respect Quebec entitlement to representation on the Supreme Court, the Court has thrown the Federal Courts and their Quebec judges under the bus.

The Federal Courts, like the Supreme Court, are required to have minimum numbers of judges from Quebec — at least 10 on the trial division and five on the Federal Court of Appeal. That is so because the Federal Court requires competence in Quebec Civil Code law (one of the things that many assume Judge Nadon lacks) and must also be seen to be legitimate in Quebec.

Following the Court’s decision in the Nadon Reference, Quebec lawyers with aspirations to sit on the Supreme Court of Canada are far less likely to be willing to serve on the Federal Courts.

To say the least, this is a bad outcome. How unfortunate that the Court believed it to be required by our Constitution.

National Post

Grant Huscroft is Professor of Constitutional Law at the Faculty of Law at Western University.